No. 38770 (Change in Proposed Rule): Section R313-17-4. Special Procedures for Decisions Associated with Licenses for Uranium Mills and Disposal of Byproduct Material

DAR File No.: 38770
Filed: 11/26/2014 04:29:43 PM

RULE ANALYSIS

Purpose of the rule or reason for the change:

The reason for filing this change in proposed rule is to address the well-reasoned and justified comments that were submitted about the original filing (DAR No. 38770, published in the September 1, 2014, Bulletin).

Summary of the rule or change:

A change in proposed rule is proposed to: 1) be more specific about a citation to federal law; 2) eliminate some confusing and duplicative language; 3) specify that the director of the Division of Radiation Control shall not be the hearing officer for the question and answer hearings established in the rule; and 4) clarify that administrative remedies through the question and answer hearing process must be exhausted in order to obtain review on appeal. (DAR NOTE: This change in proposed rule has been filed to make additional changes to a proposed amendment that was published in the September 1, 2014, issue of the Utah State Bulletin, on page 95. Underlining in the rule below indicates text that has been added since the publication of the proposed rule mentioned above; strike-out indicates text that has been deleted. You must view the change in proposed rule and the proposed amendment together to understand all of the changes that will be enforceable should the agency make this rule effective.)

State statutory or constitutional authorization for this rule:

• Subsection 19-3-104(4)
• 42 USC 2021(o)(3)(A)(ii)

Anticipated cost or savings to:

the state budget:

The change will not result in any additional costs; the only significant change proposed is a procedural clarification.

local governments:

If local government participates in a proceeding, it will not have any additional costs; the only significant change proposed is a procedural clarification.

small businesses:

If a small business participates in a proceeding, it will not have any additional costs; the only significant change proposed is a procedural clarification.

persons other than small businesses, businesses, or local governmental entities:

No person will bear any additional costs; the only significant change proposed is a procedural clarification.

Compliance costs for affected persons:

No regulated entity will bear any additional costs; the only significant change proposed is a procedural clarification.

Comments by the department head on the fiscal impact the rule may have on businesses:

No regulated entity will bear any additional costs; the only significant change proposed is a procedural clarification.

Amanda Smith, Executive Director

The full text of this rule may be inspected, during regular business hours, at the Division of Administrative Rules, or at:

Environmental Quality
Radiation ControlRoom Third Floor
195 N 1950 W
SALT LAKE CITY, UT 84116-3085

Direct questions regarding this rule to:

• Laura Lockhart at the above address, by phone at 801-536-0283, by FAX at 801-366-0292, or by Internet E-mail at [e-mail]
• John Hultquist at the above address, by phone at 801-536-4263, by FAX at 801-536-4250, or by Internet E-mail at [e-mail]
• Rusty Lundberg at the above address, by phone at 801-536-4257, by FAX at 801-533-4097, or by Internet E-mail at [e-mail]

Interested persons may present their views on this rule by submitting written comments to the address above no later than 5:00 p.m. on:

01/14/2015

This rule may become effective on:

01/21/2015

Authorized by:

Rusty Lundberg, Director

RULE TEXT

R313. Environmental Quality, Radiation Control.

R313-17. Administrative Procedures.

R313-17-4. Special Procedures for Decisions Associated with Licenses for Uranium Mills and Disposal of Byproduct Material.

(1) Definitions. For purposes of this rule:

(a) "Byproduct material" has the same meaning as defined in 42 U.S.C. Section 2014(e) (2);

(b) "License" means a radioactive materials license for a uranium mill or disposal of byproduct material, including any ground water discharge permit incorporated in a license; and

(c) "Question and answer hearing" means the informal hearing described in paragraphs (3) through (5) held for the purpose of responding to questions from the public.

(2) Scope. This rule R313-17-4 applies only to licensing activities that meet both of the following criteria:

(a) they are licensing activities described in R313-17-2(a)(i)(A) through (I); and

(b) they are for licenses or license amendments for uranium mills and disposal of byproduct materials.

(3) Opportunity for Question and Answer Hearing Prior to Director's Decision.

(a) For licensing actions that are subject to the scope of this rule, the division may, at its discretion, schedule a question and answer hearing at the time it proposes the action.

(b) If the division does not choose to schedule a question and answer hearing[session] at the time it proposes a licensing action, it shall provide notice to the public of an opportunity to request a question and answer hearing[session], and it shall schedule and hold a hearing[session] if there is a request from a member of the public.

(c) Notice of a hearing or an opportunity to request a hearing under this rule shall be made as provided in R313-17-3(5). Members of the public shall be given at least ten days to request a hearing.

(d) The division may combine the question and answer hearing with a licensing hearing held for the purpose of taking public comment on a proposed licensing action.

(4) Procedures Prior to Question and Answer Hearing.

(a) The division shall provide a notice of the question and answer hearing at least 30 days before the hearing. The notice shall also summarize the applicable procedures, including the obligation to provide questions in advance of the hearing.

(b) Any person who proposes to ask questions during the question and answer hearing shall submit the questions to the division. Questions must be received by the division by the deadline specified in the public notice, which shall be no fewer than 15 days after the notice of the question and answer hearing is posted. If a question relies on information that is not included in the licensing record, that information shall be submitted with the questions. The relevance of and the relevant portions of any supporting materials shall be described with reasonable specificity. Information submitted in accordance with this paragraph will become part of the record.

(c) If the Director determines that any of the questions submitted will not be answered during the question and answer hearing, as provided in paragraph (5)(f), the Director shall notify the person who submitted the questions prior to the hearing. Notification shall include a statement about the Director's reasons for the determination.

(5) Procedures for Question and Answer Hearing.

(a) The question and answer hearing shall ordinarily be held in the Department of Environmental Quality offices. Unless the question and answer hearing is held in a place near the proposed facility, the division shall provide an opportunity for the public to participate by telephone or other electronic means.

(b) The question and answer hearing [session ]will not ordinarily be scheduled for longer than three hours. The division may allocate time to those who have submitted questions after considering the number and nature of the questions submitted.

(c) A hearing officer who is not the director or a member of the director's staff shall manage the question and answer hearing. Representatives of the licensee and division staff shall attend the hearing.

(d) The question and answer hearing shall be recorded and transcribed. Alternatively, the division may elect to have a court reporter record and transcribe the hearing.

(e) The Director shall determine whether the initial and follow-up question will be answered by the applicant, by division staff, or by both. Notwithstanding the Director's decision, the applicant may choose to respond to any question. After the response to a question, the person who submitted the question shall be allowed to follow up with additional questions based on the response provided.

(f) Appropriate questions are those that seek specific factual information about the license application, or about other documents created during the licensing process. The following kinds of questions do not require a response during a question and answer hearing[session]:

(i) Questions that are not relevant to the licensing action;

(ii) Questions that are based on information that is not in the record;

(iii) Questions that are vague;

(iv) Questions that require speculation;

(v) Questions that seek legal conclusions;

(vi) Questions that have been previously answered;

(vii) Questions that are more appropriately characterized as comments; and

(viii) Questions that would not have to be answered during a trial-type hearing.

(g) Either the agency or the applicant may elect to answer a question even if it is a question that does not require a response under paragraph (f). No waiver will result from answering a question that does not require a response.

(h) Questions requesting information that is clear in the record may be answered by referring the questioner to the record.

(i) In the event that a questioner or the applicant disagrees with the Director's determinations under paragraphs (4)(c), (5)(b), or (5)(e), it may request a determination by the hearing officer. If the hearing officer disagrees with the Director's determination, the division or, as appropriate, the applicant may then:

(i) comply with the hearing officer's determination during the question and answer hearing;

(ii) comply with the hearing officer's determination by responding to the question in writing no fewer than 10 days before the end of the comment period; or

(iii) notify the questioner or applicant that it contests the determination, and provide information to the questioner about the procedures available to it under paragraph (5)(j).

(j) If a decision of the hearing officer is contested as described in paragraph (5)(i)(iii), the person who asked the question may challenge that failure to comply with the hearing officer's decision on appeal. If the hearing officer's determination is upheld on appeal, the record on appeal shall be supplemented as described in paragraph (6) and R305-7-607.

(6) Formal Questioning During Appeal.

If no opportunity for a question and answer hearing is provided, or if an opportunity that was provided is found by the ALJ to have been deficient, an opportunity for questions and answers shall be provided on appeal as described in R305-7-607. This opportunity for questions and answers on appeal shall be available only to a petitioner who has exhausted procedures and remedies available under paragraphs R313-17-4(1) through R313-17-4(5). The scope of questions and answers on appeal shall be limited by the scope of the deficiency.[If the procedures in paragraphs (2) through (5) are not used before the Director's final determination, an opportunity for questioning shall be provided on appeal as described in R305-7-607.]

 

KEY: administrative procedures, comments, hearings, adjudicative proceedings

Date of Enactment or Last Substantive Amendment: [March 19, 2013]2015

Notice of Continuation: July 7, 2011

Authorizing, and Implemented or Interpreted Law: 19-3-104(4); 19-1-301 and 19-1-301.5